Monkey Business

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Howard v. Chimps, Inc. (Oregon)
(An intern at a chimpanzee sanctuary was injured when she was attacked by a chimpanzee;  she sued the sanctuary but the court dismissed her negligence and strict liability claims in light of the intern manual that she read and signed that included a waiver and release agreement;  the court also determined that there was no reasonable evidence of gross negligence.)

An intern at a chimpanzee sanctuary was injured just ten days after her start date.  A chimpanzee attacked her while she was cleaning a cage, and she brought an action against the sanctuary for negligence and strict liability.  Plaintiff thereafter moved for partial summary judgment, arguing that the waiver and release she signed was not enforceable.  The trial court denied that motion and later granted the defendant’s motion for summary judgment finding that the waiver and release precluded the plaintiff’s claims.  Plaintiff then appealed.

The facts on appeal were not in dispute.  The defendant has a strict confidentiality policy and other rules that were put in place that would help the facility avoid scrutiny over safety concerns.  After being accepted in the intern program, the plaintiff received a detailed intern manual that included waiver and release language.  The manual also included multiple disclaimers permitting the defendant to change, delete, suspend, or discontinue their policies at any time without prior notice.

After reviewing the documentation, plaintiff spoke with the defendant’s executive director, who informed her that she would not have physical contact with the chimpanzees.  When plaintiff arrived at the facility, another employee assured her that there would be no contact with the chimpanzees.  Plaintiff was told that the doors separating the chimpanzees and interns would never be unlocked, and that even if a chimpanzee did escape it would not be looking to hurt anyone.  Plaintiff then signed the intern manual before entering the sanctuary.  Plaintiff’s injury was the result of an apparent failure to lock tunnels that led to the cage she was cleaning.

Plaintiff first argued that the waiver and release should not be enforceable because of the disclaimer language found in the manual.  She contended that since the language could be changed at any time, it rendered the promises illusory.  However, the Court disagreed, finding that the defendant had performed under the contract and that consideration was sufficient (allowing her to enter the sanctuary and participate in the internship program in exchange for executing the agreements, including the waiver and release).  Plaintiff also made the argument that the disclaimer in the manual improperly allowed the defendant to retroactively change the terms of the agreement between the parties.  However, the Court explained that even if the defendant had reserved the right to change the terms of the manual, it would not have been able to do so with respect to the waiver and release signed by the plaintiff because the agreement of the parties had already been performed in that regard (entry/participation in exchange for execution).  Moreover, the Court expressed its opinion that the disclaimer language, read as a whole and in context, concerned the defendant’s right to prospectively change the terms of its agreement as applied to both present and future employees.

Next, the plaintiff argued that the waiver and release was unenforceable as to what she contended was a claim for gross negligence.  The trial court had initially ruled that she had failed to state a claim for gross negligence, and she challenged that ruling on appeal.  In attempting to establish gross negligence, plaintiff referred to a history of attacks that had occurred at the defendant’s facility.  Plaintiff referred to at least five occasions in which chimpanzees had previously injured employees, volunteers, and other people on sanctuary property.  Plaintiff also noted that she had not been told about those incident prior to accepting the invitation to participate in the internship program or prior to her signing the intern manual and waiver and release document.

In addressing the prior incidents, the Court stated that “[t]he history of attacks, while not insignificant, is less damning than plaintiff would have it.”  After detailing the incidents, the Court summarized the situation as follows:

“In short, defendant’s history of chimpanzee attacks on humans consists of three serious attacks that occurred very early in defendant’s history, one serious attack that occurred more than a year after plaintiff was injured, two attacks that resulted only in minor injuries, and one attack about which essentially nothing is known. Those incidents occurred over the course of more than 14 years. Three of the serious attacks were the result of the victim being somewhere he should not have been or doing something that defendant’s current policies clearly prohibit.”

Thus, the Court concluded “no reasonable juror could find that the history of attacks and defendant’s secrecy policy demonstrate a reckless disregard of safety or an indifference to the consequences of leaving a tunnel door unlocked while people are in one of the chimpanzee’s cages.”  The Court of Appeals affirmed the trial court’s decision, finding that the plaintiff had failed to produce evidence from which a jury could infer that her injuries resulted from defendant’s gross negligence.

NOTE: This case is most fascinating with respect to the court’s strong effort to dismiss the plaintiff’s allegations of gross negligence, particularly with regard to prior incidents.  It is often difficult to get the courts to rule as a matter of law against gross negligence claims at the motion stage.  The court did not specifically address the issue of whether or not the waiver and release would have applied to bar a gross negligence claim if one had been sufficiently stated by the plaintiff.  In almost every jurisdiction, the law finds that it is contrary to public policy for a party to exculpate himself/itself from such liability.

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